A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.


ANNOUNCEMENT: 

REGISTER NOW for our upcoming Ag Technology & the Law conference, August 15 and 16 in Little Rock, Arkansas. Details here.


JUDICIAL: Includes CWA, forestry, and aquaculture issues.

In ATCHAFALAYA BASINKEEPER; Louisiana Crawfish Producers Association–West; Gulf Restoration Network; Waterkeeper Alliance; Sierra Club, and its Delta Chapter, Plaintiffs–Appellees v. UNITED STATES ARMY CORPS OF ENGINEERS, Defendant–Appellant, Bayou Bridge Pipeline, L.L.C.; Stupp Brothers, Incorporated, doing business as Stupp Corporation, Intervenor Defendants–Appellants, No. 18-30257, 894 F.3d 692 (5TH Cir. July 6, 2018), environmental groups sued regarding defendants’ issuance of a permit for the construction of an oil pipeline impacting Louisiana wetlands. Pipeline companies intervened and plaintiffs sought a preliminary injunction “pending a merits challenge to the permit.” Appellate court found the pipeline project “did not have a significant environmental impact, and thus a Finding of No Significant Impact (FONSI), rather than a mitigated FONSI, was warranted.” Court also concluded that there was a “rational connection between project, CWA and NEPA implications, and Corps’ decision to issue construction permit based on FONSI.” Vacated and remanded.

ALLIANCE FOR THE WILD ROCKIES, Plaintiff-Appellant, v. Christopher SAVAGE, Kootenai National Forest Supervisor; Faye Krueger, Regional Forester of Region One of the U.S. Forest Service; United States Forest Service, an agency of the U.S. Department of Agriculture; U.S. Fish & Wildlife Service, an agency of the U.S. Department of the Interior, Defendants-Appellees, And Kootenai Forest Stakeholders Coalition, a Montana Corporation; Lincoln County, a political subdivision of the State of Montana, Intervenor-Defendants-Appellees, No. 16-35589, 2018 WL 3579873 (9th Cir. July 26, 2018) involved a challenge to a logging project that allegedly impacted the Canada lynx and the Cabinet-Yaak grizzly bear, two threatened species. Plaintiff appealed under National Forest Management Act (NFMA) regarding the Forest Service’s (FS) “failure to comply with the Motorized Vehicle Access Amendments (Access Amendments), which set standards for grizzly bear habitat on Forest Service land.” District court granted summary judgment to defendants and plaintiffs appealed, arguing that the “total road maintenance” in an area in which the grizzly bears are found “exceeds the total road mileage ‘baseline’ standard established by the Access Amendments.” Appellate court found the FS acted “arbitrarily and capriciously” by not analyzing the “total linear miles of permanent roads” in the area at issue. Reversed.

In UNITED STATES of America, Plaintiff-Appellee, v. Gregory OBENDORF, Defendant-Appellant, No. 16-30188, 894 F.3d 1094 (9th Cir. July 9, 2018), the government alleged that a farmer used his farmland to conspire to bait a duck field and “lure ducks for hunting by directing his employees to harvest the duck field wastefully.” Farmer was convicted of “conspiracy to unlawfully bait migratory birds and unlawfully baiting migratory birds” and appealed. Appellate court observed that Migratory Bird Treaty Act (MBTA) regulations “define ‘baiting’ and ‘baited area’ very broadly,” and plaintiff maintained that a farmer could be prosecuted “for baiting the same field even though he or she was simply farming the land.” Appellate court concluded the “agricultural practice exception” under the MBTA “applied to unlawful taking, but not unlawful baiting.” Affirmed.


LEGISLATIVE:

H.R. 4528: To make technical amendments to certain marine fish conservation statutes. Passed Senate without amendment by Unanimous Consent.

S. Res. 596: A resolution recognizing the 29th anniversary of the Tribal Canoe Journey of the Tribal Nations of the Pacific Northwest and congratulating the Puyallup Tribe of Indians for hosting the 2018 Power Paddle to Puyallup. Referred to the Senate Committee on Indian Affairs which will consider it before sending it to the Senate floor for consideration.

S. 3280: A bill to increase intergovernmental coordination to identify and combat human trafficking within Indian lands and of Indians. Referred to the Senate Committee on Indian Affairs which will consider it before sending it to the Senate floor for consideration.

H.Res. 1037: Recognizing the 29th anniversary of the Tribal Canoe Journey of the Tribal Nations of the Pacific Northwest and congratulating the Puyallup Tribe of Indians for hosting the 2018 Power Paddle to Puyallup. Referred to the House Committee on Natural Resources.

H.R. 6602: To reauthorize the New Jersey Coastal Heritage Trail Route. Referred to the House Committee on Natural Resources which will consider it before sending it to the House floor for consideration.

H.R. 6623: To advance STEM education, provide for improved worker, training, retention, and advancement, and for other purposes. Referred to the House Committee on Education and the Workforce, House Committee on Energy and Commerce, and 8 other committees.

H.R. 6596: To provide for restoration, economic development, recreation, and conservation on Federal lands in Northern Cal. Referred to the House Committee on Natural Resources which will consider it before sending it to the House floor for consideration.

H.R. 6578: To amend section 6 of the Joint Resolution entitled “A Joint Resolution to approve the Covenant To Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America. Referred to the House Committee on Natural Resources and House Committee on the Judiciary.

H.R. 6546: To amend the Wild and Scenic Rivers Act to make technical corrections to the segment designations for the Chetco River, Oregon. Referred to the House Committee on Natural Resources.

H.R. 6631: To cancel the registration of all uses of organophosphate pesticides. Referred to the House Committee on Agriculture and House Committee on Energy and Commerce.

H.R. 6567: To amend the Forest and Rangeland Renewable Resources Planning Act of 1974 to modify a provision relating to certain consultation requirements. Referred to the House Committee on Agriculture and House Committee on Natural Resources.

H.R. 6614: To direct the Secretary of Agriculture to release reversionary and reserved interests in certain lands within the Coconino National Forest, Arizona. Referred to the House Committee on Natural Resources.


REGULATORY: Includes AMS, USDA, EPA, FWS, FDA, FNS, FSIS, NOAA, and NTIA rules and notices.

AGRICULTURAL MARKETING SERVICERule proposes amendments to Marketing Order No. 959, which regulates the handling of onions grown in South Texas. Details here.

AGRICULTURE DEPARTMENTNotice USDA has submitted the following information collection requirement(s) to OMB for review. Title: Contact Information of Schools That Participate in the National School Lunch Program and Organizations That Participate in the USDA’s Child and Adult Care Food Program. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is adopting two alternative performance standards that either Participating State Directors in states with approved CCR permit programs (participating states) or EPA where EPA is the permitting authority may apply to owners and operators of CCR units. Info here.

Rule EPA is issuing a final rule to amend its Underground Injection Control (UIC) regulations to reflect the transfer of the state of Idaho’s UIC program for Class II injection wells from Idaho to the EPA. Details here.

FISH AND WILDLIFE SERVICE:

Rule FWS will withdraw the Endangered Species Act (ESA) Compensatory Mitigation Policy, published December 27, 2016 (ESA-CMP). Details here.

Rule FWS will the Mitigation Policy published November 21, 2016, which guides Service recommendations on mitigating the adverse impacts of land and water developments on fish, wildlife, plants, and their habitats. Info here.

FOOD AND DRUG ADMINISTRATION:

Notice is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995. Title: Survey on the Occurrence of Foodborne Illness Risk Factors in Selected Retail and Foodservice Facility Types. Details here.

FOOD AND NUTRITION SERVICE:

Notice seeks comment on this proposed information collection. This collection is a new collection to test the feasibility of online purchasing for SNAP through Evaluation of Technology Modernization for SNAP Benefit Redemption through Online Transactions for the USDA. Info here.

Notice of a request for information from State agencies administering Child Nutrition programs and State distributing agencies to learn about the successes, challenges, and needs for the State Administrative Expense allocation formula. Info here.

FOOD SAFETY AND INSPECTION SERVICE: Notice FSIS is announcing the availability of and requesting comments on a guideline to assist FSIS-regulated establishments, retail food outlets, and foodservice entities in minimizing public health risks associated with raw or partially-cooked chicken liver. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice NMFS has issued an incidental harassment authorization (IHA) to Chesapeake Tunnel Joint Venture to incidentally take, by Level A and/or Level B harassment, four species of marine mammals during the Parallel Thimble Shoal Tunnel Project in Virginia Beach, Virginia. Info here.

Notice NMFS has issued an Incidental Harassment Authorization (IHA) to take marine mammals, by harassment, incidental to high-resolution geophysical (HRG) survey investigations associated with marine site characterization activities off the coast of Massachusetts in the area of the Commercial Lease of Submerged Lands for Renewable Energy Development. Details here.

NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATIONNotice NTIA will host the Virginia Broadband Summit in Roanoke, Virginia on October 30, 2018. The purpose of the Summit is to engage the public and stakeholders with information to accelerate broadband connectivity, improve digital inclusion, and support local priorities. Info here.